Commentary for Bava Metzia 11:16

[If Ruvain] consecrated [the garment] without snatching it, what is [the law]? Since the Gemara depends the second question about consecrating without snatching on the first question, we must conclude that the second question is speaking about the same circumstances as the first question.
[The second question] about Ruvain consecrating the garment is also speaking of a situation where [Shimon] was silent when [Ruvain] consecrated the garment and ultimately when the Temple treasurer asked Shimon to give his half to the Temple treasury he exclaimed in protest that Ruvain had no legal right to consecrate Shimon’s half of the garment.
What is the basis of the Gemara’s question? [The Gemara] is asking as follows: Since one’s statement consecrating an object to the holy domain of the Temple treasury etc. [is as effective as handing an object to a private person],¹When Ruvain says to Shimon “I will give you this car”, the car does not become Shimon’s and Shimon has no legal claim to the car. It will become Shimon’s only after a legal act of acquisition takes place. Insofar as giving that car to the Temple treasury is concerned, when Ruvain says that he is giving it to the Temple treasury, the car automatically belongs to the Temple treasury. Thus his word to the Temple treasury is as effective as handing the car (or performing any other act of acquisition) to a private person. the act of consecration is the equivalent of snatching, for since [Shimon] was silent in the face of Ruvain displaying his ownership by consecrating the garment, he is admitting to [Ruvain] that the garment is Ruvain’s and it is effectively consecrated and now becomes the property of the Temple treasury.
Tosfos will continue with the other side of this question a bit later beginning with the words או דלמא. At this point Tosfos is interjecting a difficulty even if we should assume that Ruvain’s declaration is the equivalent of snatching the garment and we can establish Ruvain’s ownership of the garment by Shimon’s initial silence. Nevertheless, ownership alone is insufficient for consecrating an object. In addition to belonging to Ruvain, the garment must be in his domain and under his control. In the case of our Gemara, even if we are convinced that Ruvain owns the garment, half is still in Shimon’s domain and under his control. This should effectively prevent Ruvain from consecrating the half that is presently in Shimon’s hands. Tosfos needs to explain how Ruvain can consecrate the garment even though half is presently in Shimon’s domain and under his control.
During this discussion Tosfos will also show us the source of the ruling that consecration can only be effective if one is the owner of the article and it is also in his domain.
This case when Ruvain consecrates the half garment that is in Shimon’s hands is not similar to when one stole an object and the owner did not give up hope of retrieving it, where both the owner and the thief cannot consecrate the stolen object. [The thief] cannot consecrate the object because it is not his and [the owner] cannot consecrate it because it is not in his domain. If so, in our case even if the consecration is tantamount to snatching the garment and it is viewed as Shimon’s admission of Ruvain’s ownership, the garment does remain in Shimon’s hands and Ruvain should not be able to consecrate it? Tosfos explains why this is not so.
For since [Shimon] admitted to [Ruvain] that the garment is Ruvain’s, it is tantamount to a deposit that one has in another’s possession, that he can consecrate even though the object is not physically in his possession. A custodian is an agent of the depositor and as such his holding the article is the equivalent the depositor holding the article. It is only when a thief is holding the article and he is doing so specifically because he does not want to return the object to its rightful owner that we say it is not in the domain of the owner. However, when a custodian is holding the article it is considered in the domain of the owner. If we view Shimon’s silence as an admission that the garment belongs to Ruvain, Shimon is a custodian who is holding half for Ruvain and Ruvain may consecrate it.
Tosfos will now quote a Gemara (Bava Basra 88a) to prove that there is a difference between one who is holding the object for the owner and one who is not. There was a certain person who brought gourds to Pum Nahara. Everybody came and took some of the gourds with the intention of purchasing them. He said to them: Behold, they are consecrated to heaven. The question arises as to whether he has the authority to consecrate the gourds, since they were for sale. Perhaps the purchasers already acquired the gourds and the previous owner could no longer consecrate them?They came before Rav Kahana to inquire about the status of the gourds. He said to them: A person cannot consecrate that which is not his. The buyers had already acquired the gourds and they no longer belonged to the previous owner. He could not consecrate them.
The Gemara adds a stipulation to this ruling: This ruling is so, when the price was fixed and whoever picked up the gourds intended to acquire them at the fixed price. But if the price was not fixed, [the gourds] are in the domain of their original owner and he rightfully consecrated the gourds. They were still his when he consecrated them, since no price had yet been established the customers could not acquire them. Now the gourds were in the hands of the customers, even so the Gemara ruled that the original owner could consecrate them, because they were not intending to steal them. Their intention was to return the gourds to the owner if they could not negotiate a price that was agreeable to both parties. Since they were holding the gourds with the intention of giving them back to the owner if need be, the owner was able to consecrate them.
As is evident in HaMocher es HaSefinah (Bava Basra 88a) in regard to that certain person who brought gourds etc. [to Pum Nahara], where the Gemara concludes that if the price was not fixed the buyers did not acquire the gourds and they are consecrated even though they were in the hands of the customers when the owner consecrated them. It is evident that even though the gourds were in the hands of the customers, since their intention was to return them to the owner, it is as if they were in his possession and he is able to consecrate them.
Tosfos now explains the second side of the question raised earlier: Or, perhaps consecrating is not tantamount to snatching, for why should [Shimon] protest because of [Ruvain’s] words? [The Gemara] cites the case of that pool where one of the litigants consecrated and the other litigant was silent.²The simple reading of these words tends to lead us to the conclusion that the legal question in the case of the disputed bath was also about Shimon’s initial silence followed by his protest. The Gemara eventually rules that the bath was not consecrated, so we have proof that initial silence during consecration is not tantamount to an admission. See מהר"ם ,מהרש"א and מהר"ם שי"ף who all discuss a very pertinent problem in understanding this Tosfos. In the very next Tosfos, there is a lengthy discussion about the legal question in the case of the bathhouse. Tosfos does not even mention that the issue was whether Shimon’s initial silence is considered an admission. If so, how can Tosfos just a few lines earlier tell us that the question there was also about whether Shimon’s initial silence is construed as an admission? מהר"ם שי"ף explains that Tosfos here certainly agrees with his own analysis of the legalities of that case as he himself says in the very next Tosfos. However, the Gemara that resolves the question of initial silence from Rav Huna’s ruling must have known that this was in fact part of the story of the pool. Although the legalities of that case were different as Tosfos will explain, the story was the same. As Rav Huna deals with that question and rules that the bath did not become consecrated, he is simultaneously ruling that it also did not become consecrated due to the initial silence. Thus the Gemara’s resolution of the issue of initial silence is correct. In the next Tosfos we will discuss why Tosfos could not say that the issue of the bath was not the initial silence. The conclusion is that [the bath] was not consecrated. Rav Huna ruled that since Ruvain could not win the bath via legal proceedings in Bais Din, it is not considered his and he does not have the authority to consecrate it. It is obvious that Rav Huna does not hold that Shimon’s silence is an admission, for if it was an admission, Ruvain could win the bath in court with testimony that Shimon was silent when he consecrated it and effectively admitted that it was Ruvain’s. Since Rav Huna ruled that the bath was not consecrated, he obviously maintains that Shimon’s silence if the face of Ruvain’s consecration is not an admission. Thus we see that [the litigant’s] silence is not tantamount to an admission.